Issue of Fact as to Whether Auto Claimant was COE Requires Decision by WC Board

Saturday, June 16, 2007 | 0

By Larry Rogak

Response Equip., Inc. a/a/o Simeon Ernst et al. v. American Transit Ins. Co.

2007 NYSlipOp 51176(U)

Decided on June 8, 2007

Appellate Term, Second Department

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for partial summary judgment in the sum of $1,454,98 on the claims submitted with respect to Hypolite Francis and defendant cross-moved for partial summary judgment on the ground that at the time of the accident, Francis was acting in the course of his employment, requiring that plaintiff pursue its compensation claim before the Workers' Compensation Board. The court granted plaintiff's motion for partial summary judgment and denied defendant's cross motion. The Appellate Term reversed.

"We find defendant's proof, including the police accident report, was sufficient to raise a question of fact as to whether Francis was acting as an employee at the time of the accident, which issue must be resolved by the Workers' Compensation Board (O'Rourke v Long, 41 NY2d 219, 224 [1976]; Matter of Piku v 24535 Owners Corp., 19 AD3d 722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003])."

"Accordingly, the order is reversed and the matter remanded to the court below with the direction that the court hold the matter in abeyance pending a prompt application to the Workers' Compensation Board for a determination of the parties' rights under the Workers'Compensation Law (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305, 305 [2006])."

Comment: Because workers compensation is primary to no-fault, the workers compensation board must make a determination as to whether or not a claimant was in the course of his employment before he can qualify for no-fault benefits. If the insurer can show that there is an issue of fact as to such employment, the no-fault suit must be stayed, the claimant must apply to the WCB for benefits, and a decision must be made by the Board.

Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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